Respect for the home

Qazi v Harrow LBC [2003] UKHL 43

The House of Lords, for the first time, has considered the effect of article 8 of the European Convention on Human Rights (right to respect for the home) in the context of possession actions.

In particular, the committee addressed the fundamental issue of whether a possession action necessarily interferes with an occupier's rights under article 8(1), with the consequence that the court must always consider whether the eviction is justified under article 8(2).

The defendant and his wife were joint tenants of a flat owned by the claimant local authority.

The marriage broke down and the wife left.

She determined the joint tenancy by notice to quit.

He remained in the flat and the authority brought possession proceedings.

It was conceded that he was a trespasser but he argued that to make a possession order would interfere with his right under article 8 and that there was no justification for that interference.

The county court held that there was no interference with article 8.

In the Court of Appeal, the case proceeded solely on the question whether the concept of 'home' for the purposes of article 8 is confined to property which is lawfully occupied.

The court held that even though the defendant was a trespasser, the property was still his home and his rights under article 8 were therefore engaged.

The case was remitted to the county court for consideration of whether the interference with his rights could be justified under article 8(2).

The House of Lords unanimously held that the flat remained the defendant's home.

However, this was the only question on which there was total agreement.

Before the House of Lords, the issue became whether all proceedings for possession of a home engaged article 8.

The minority (Lords Bingham and Steyn) adopted the approach taken in a number of Court of Appeal decisions: see Poplar HARCA v Donoghue [2001] EWCA Civ 595; R (McLellan) v Bracknell Forest BC [2001] EWCA 1510; and, Sheffield CC v Smart [2002] EWCA Civ 04.

Any action to evict a person from a home necessarily engaged article 8, with the result that justification under article 8(2) had to be considered.

However, Lord Hope considered that - although article 8(1) was engaged - article 8(2) was fulfilled wherever the law affords an unqualified right to possession on proof of termination of the tenancy.

He agreed with Lords Millett and Scott that contractual and proprietary rights to possession cannot be defeated by a defence based on article 8, which is primarily concerned with arbitrary intrusion by state or public authorities into a citizen's life and is not intended to undermine an owner's legal right to possession.

However, Lords Millett and Scott went on to hold that article 8(1) was not infringed at all.

Article 8 is not ordinarily infringed by enforcing the terms under which property is occupied.

No balancing exercise under article 8(2) is required where the outcome of it is a foregone conclusion, for example, where the right to occupy is circumscribed by the terms of the tenancy and has come to an end, so that eviction is necessary to protect the rights of the authority as owner of the land.

By Andrew Dymond, barrister, Arden Chambers, London